Babar Awan would make an excellent next CJ. What do you think?
Justice Rafiq or Babar Awan may be next CJ
**Justice Rafiq or Babar Awan may be next CJ
**ISLAMABAD: Federal Law Secretary and Sindh High Court Judge, Justice Agha Rafiq Ahmed Khan, or Parliamentary Affairs Minister Babar Awan are the two main PPP choices when Justice Abdul Hameed Dogar makes an early or normal exit from his august office, a knowledgeable source said on Sunday.
“As the controversy over the jacked-up marks of Justice Dogar’s daughter refuses to die down, the government has started serious work on who could replace him and Justice Agha Rafiq and Awan are so far the front-runners,” the source told The News.
Law Minister Farooq H Naek and Law Secretary Agha Rafiq were not available for comments, but one source claimed Agha Rafiq may benefit if the present crisis forces Justice Dogar out prematurely.
“It is abundantly clear to me that the government doesn’t want to pick any of the incumbent apex court judges as chief justice,” a senior lawyer, who has held top government and judicial offices, informed this correspondent.
A ruling PPP leader, who recently had a chance of meeting Agha Rafiq, said the judge told him that he was fully backed by top government leaders for appointment as chief justice.He said Justice Rafiq’s claim was that he was as senior as Justice Dogar because both were appointed in the Sindh High Court as judges through the same notification in 1995.
But legal experts said if the government decided to appoint Rafiq because of his claim that he was as senior as Justice Dogar, it might raise another gigantic controversy, which may embroil the existing SC judges, causing almost a judicial deadlock.
The PPP leader recalled Justice Rafiq was also once appointed as director in PIA during the tenure of Benazir Bhutto government. He said it was no secret that Rafiq was very close to President Asif Ali Zardari.
In support of Justice Rafiq’s claim, the lawyer quoted several examples of judges being given back the seniority they had missed for one reason or another. A number of recent examples involve judges who had been ousted under the Nov 2 orders of Pervez Musharraf. When they were recently reappointed, they were given their seniority.
Similarly, the lawyer explained, Justice Nawaz Abbasi and Justice Mian Mannan, since both retired, were also given seniority when they were confirmed by the Nawaz Sharif government. He said the case of the incumbent SHC chief justice was also the same.
According to him, Justice Rafiq claims he should be given seniority from 1996 when he was sent back from the SHC to his position as the district & sessions judge through a judgment of the Supreme Court. He was again appointed SHC judge in December 2007 along with some other judges during the last caretaker government. He again remained district judge for eleven years after he was sent back from the SHC in 1996.
But another controversy that will have to be addressed would be Agha Rafiq’s eligibility because he had once accepted a PIA job. Very recently Justice Javed Iqbal was denied his return to the SC because he had also accepted a government job.
“We will be in the middle of a huge judicial storm if Agha Rafiq is pushed over and above the other current and deposed SC judges,” one legal expert said.
A knowledgeable source revealed that senior lawyer Babar Awan’s name had been given a serious thought in the top official quarters for nomination as the next chief justice of Pakistan.
He said the Constitution allowed President Zardari to appoint a top lawyer from amongst practicing advocates, who qualified to be a Supreme Court judge.
Along with Farooq Naek and Attorney General Latif Khosa, Awan has emerged as one of the principal legal advisers to President Zardari and Prime Minister Yousuf Raza Gilani.
However, experts say, there is no precedent in Pakistan’s history of a lawyer being appointed as a Supreme Court chief justice. But there are two such examples, one in the Lahore High Court and the other in the SHC when leading lawyers were made provincial chief justices.
In Awan’s case as well, the government fears a severe backlash from the lawyers’ community, opposition parties and certain other sections of society if after the CJ the senior most judge, Justice Sardar Muhammad Raza Khan, was not made chief justice.
The current campaign to restore Chief Justice Iftikhar Muhammad Chaudhry will, however, suffer serious damage if Justice Raza is given the top judicial position.
Political reaction to the possible PPP nominees is already furious. PML-N Information Secretary Ahsan Iqbal told this correspondent that the appointment of Agha Rafiq or Babar Awan would be outrageous and unacceptable. He said the government’s aversion to the return of Iftikhar Muhammad Chaudhry after the elevation of Abdul Hameed Dogar and its argument that there could not be two chief justices at a time, would be shattered with the exit of the incumbent CJ.
Ahsan Iqbal said it was not the time to take controversial decisions that divided the nation. “We now need decisions that unite and galvanise the nation,” he observed.
Jamaat-e-Islami Senator Prof Khurshid Ahmed remarked it would be extremely shameful if the government appointed Justice Rafiq, Babar Awan or any other lawyer as the chief justice. The senior most judge of the Supreme Court should replace Justice Dogar, he stressed.
He believed that it was the time to vindicate the judiciary, not politicise it. He said all lawyers having political backgrounds should be kept out of judicial seats. He warned if the government did not follow the famous judges’ case, there would be protest everywhere.
While considering the names of Agha Rafiq and Babar Awan, the government has not ruled out the previous possibility of extending the tenure of Justice Dogar. But it is clear it would not be able to do so given the storm created by the Farah Hameed Dogar’s scandal.
Another lawyer, supportive of the government, pointed out that a number of writ petitions were pending in different courts on judges’ retirement age.
He said the retirement age of any SC judge, once raised, cannot be reduced. He referred to the three-year increase in the retiring age for apex court justices by Pervez Musharraf, which was not accepted by parliament at the time of approval of the 17th Amendment.
The intense campaign that erupted after the exposure of the Farah Hameed Dogar scandal has considerably dampened the government’s resolve to extend the tenure of Justice Dogar.
Although a common perception is that the present controversy has sealed the fate of Dogar, the government continues to extend full support to him. It is not prepared to refer the dispute over powers of the National Assembly Committee on Education to a full bench of the SC to get it decided once and for all.
A senior lawyer recalled that a similar row erupted in India between a provincial assembly and the high court, with both issuing contempt notices against each other. Finally, the federal government intervened and referred the matter to the SC, which upheld the view of the high court.
Puppet dogar might have set new records of brown nosing Musharraf, but this guy will create new ones for Zardari.